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Supreme Court Will Weigh in on Evidence Dispute in Citizenship Question Lawsuits

What you need to know

November 16, 2018

Today, the Supreme Court announced that it will wade into the long-running dispute over the evidence in lawsuits challenging the Commerce Department’s controversial decision to add a citizenship question to the 2020 census. This dispute is important, but narrow: The Court won’t be weighing in on the underlying question of whether the decision to add the citizenship question was illegal. Here’s what the Court’s latest announcement is all about.

What issues will the Supreme Court be deciding?

The Court will decide whether the trial-court judge in New York correctly allowed the groups challenging the citizenship question to obtain documents and other information from the federal government beyond what’s in the official administrative record (the set of documents that the Commerce Department claims it relied upon when it decided to add the question). 

Normally, in cases challenging a federal agency’s actions, the challengers are limited to making their case based on the administrative record alone. Here, however, the trial judge found sufficient evidence that Commerce Secretary Wilbur Ross made the citizenship question decision in bad faith and ruled that the challengers could therefore seek more documents from the government to get the full story behind his decision-making process. The judge also allowed them to question Secretary Ross and other high-ranking officials under oath. 

The Supreme Court had already temporarily blocked the questioning of Secretary Ross while it was deciding whether or not to take the case. Now, the Trump administration wants the Supreme Court to hold that none of the extra-record evidence should be allowed into the cases, including the testimony of Secretary Ross and John Gore, a high-ranking Justice Department official who was involved in the decision to add the citizenship question. The plaintiffs recently questioned Gore under oath and his testimony is currently part of the trial record.

How could the Court’s decision affect the outcome of the cases?

The Supreme Court’s decision will affect what evidence the plaintiffs will be able to use to prove their legal claims that the Commerce Department violated the law. The violations involve the Administrative Procedure Act, which regulates how federal agencies can make decisions, and the Fifth Amendment to the U.S. Constitution, which guarantees everyone equal protection under the law. If the Supreme Court overturns the trial court’s rulings, then the challengers will be limited to the evidence in the administrative record. They won’t be able to use the testimony of John Gore, and they won’t be able to question Secretary Ross. 

The Court won’t be ruling on the underlying question driving the lawsuits: whether Secretary Ross violated the law when he added the citizenship question. That dispute will wait for another day.

What happens next?

The Supreme Court will hear oral argument on the issue on February 19, 2019. For the time being, the cases in the trial courts are proceeding as normal. Trial in New York wrapped up yesterday, and the final arguments are scheduled for Tuesday, November 27. The judge could issue a decision by early December. Cases in California and Maryland are set for trial in January.